Jess Bravin at the Wall Street Journal has a piece on the recent Justice Department memo that states the second amendment guarantees an individual right to bear arms. Note that the JD concludes this but also concluded that all current federal gun laws are constitutional. Some comments:

Although scholars long have noted the ambiguity of the 27-word amendment, courts generally have interpreted the right to “keep and bear arms” as applying not to individuals but rather to the “well-regulated militia” maintained by each state.

The ambiguity noted by scholars is a recent development. I challenge anyone to find evidence of the collective right interpretation prior to, say, the 1940s. Miller doesn’t count for reasons indicated later. Even if the collective right model was the case (it’s clearly not), then where are these state militias? The National Guard is not it as they are run by the federal government and there was a case where the court ruled that a governor could not overridden federal orders to the Guard.

The new Justice Department memorandum acknowledges that “the question of who possess the right secured by the Second Amendment remains open and unsettled in the courts and among scholars,” but goes on to declare that “extensive reasons” support seeing it as an individual right, while there is “no persuasive basis” for taking another view. The Supreme Court’s 1939 opinion [US v. Miller – ed.], upholding a federal law requiring registration of sawed-off shotguns, found that the amendment didn’t guarantee “the right to keep and bear such an instrument,” because it had no “reasonable relationship to the preservation or efficiency of a well-regulated militia.” The court didn’t go further to say what firearms rights the Constitution did guarantee, but federal courts subsequently have dismissed challenges to gun-control laws on Second Amendment grounds.

Miller doesn’t say that there is no individual right. And it doesn’t say there is only a state right. If it did, the justices would have asked Is Miller a state? They did not.

The article closes with:

Robert Post, a constitutional-law professor at Yale Law School, said the new memorandum disregarded legal scholarship that conflicted with the administration’s gun-rights views. “This is a Justice Department with a blatantly political agenda which sees its task as translating right-wing ideology into proposed constitutional law,” he said.

Actually, modern legal scholarship disregarded (until very recently) the meaning of the second amendment. This is a justice department reversing a blatantly political agenda that is unsupported in any serious fashion. More on the second amendment from constitutional scholars here and here.

Posted in uncategorized on January 7th, 2005 by SayUncle | RSS 2.0 |